Sunday, January 13, 2013

John Stuart Mill's classic essay "On Liberty" deals with the issue of "civil liberties" not the metaphysical issue of "free will". In context, it would appear that most attacks on civil liberties originate from within the right wing and, more specifically, tyrannical police states and/or aristocratic rule. Mill addresses threats against liberty from within the institutions of democracy. The issue is especially relevant when widespread domestic wiretapping and Government ordered surveillance violates the Fourth Amendment to the U.S. Constitution.

Early 'libertarians' sought to limit the power 'rulers' over those governed. While many believed that rule by a popularly elected government addressed the issue, Mill, however, identified a need to limit the power of elected governments and officials as well. In 'On Liberty', Mill raises basic issues: "who should rule?" What are the limits of government power"? How may the people establish limits on the power that government may exercise over minorities and individuals? His work is more relevant now than ever.

Mill argues that, as an ideal, "government of the people" is often not the case in fact. Those asserting the power of the government -elected officials, bureaucrats, the judiciary -often develop their own interests, influenced as they often are by 'constituencies' at odds with the general interests of 'the people' and, in particular, the legitimate interests of individuals.

Mill makes no distinction between a tyranny of one and a tyranny of many. A tyrannical majority running roughshod over the rights of individuals and minorities is no less a tyrant simply because it is a majority or because it is elected, or because it is elected by a majority.

Mill believed that while society may not tolerate criminal behavior, for example, society may not legitimately interfere with or suppress non-conforming behaviors indiscriminately or simply because a majority may not approve. What then are the powers that society may legitimately exercise over the individual? Mill answers:

"The only purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others."

-J.S. Mill, On Liberty

James Madison -called the "Father of the Constitution" -may have anticipated Mill's ideas in his draft of the Bill of Rights --the first ten amendments to the Constitution. Implicit in the Bill of Rights is the recognition that the power of the state must be limited! A majority --unchecked --is frequently a blunt instrument capable of oppressing and repressing the rights of individuals and minority groups alike. The Bill of Rights addresses this issue by guaranteeing "due process of law", limiting state power over individuals and groups, guaranteeing that groups and individuals may speak freely, worship freely.

The Fourth Amendment specifically is a promise that our government made to us in its very founding:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

---Fourth Amendment, Bill of Rights, U.S. Constitution

Let's make something abundantly clear: there are no "inherent powers", "implicit authorizations" that would, in any way, overturn, limit, or repeal the Fourth Amendment. Some politicians, perhaps many, are wrong about that; some may have deliberately lied. Moreover, Congress may not overrule the Fourth Amendment with statutory law. Constitutional Law is supreme and provisions in the Bill of Right are valid until amended as stated in the Constitution itself. Widespread domestic surveillance is illegal whatever may be done by Congress ex post facto. Until the Constitution is amended, such warrantless surveillance will remain illegal. At last, ex post facto laws, themselves, are expressly forbidden by the Constitution.

Mill is all the more remarkable for his insight into issues that remain contemporary. In every literate criticism of "special interest groups", PAC's, the gun lobby, the tobacco lobby, the Military/Industrial Complex, one sees the lasting influence of John Mill.

On Liberty is essential reading for anyone interested in law, the principles of government, political science, political philosophy, indeed, freedom itself. It is also essential reading for anyone interested in learning about the intellectual underpinnings of Anglo-American civil liberties.